Commission Proposal on a Directive for Term Extension. Reissues and the “use-it-or-lose-it” provision

The EU Commission has recently proposed an extension of the copyright protection of sound recordings from 50 to 95 years. The complete documents can be found at
 
http://ec.europa.eu/internal_market/copyright/term-protection/term-protection_en.htm
 
I have commented on the proposal at some length in my previous blogs. The Commission claims that in addition to other beneficial effects, the proposal would encourage record companies to reissue a larger part of their back catalogues, which today are largely inaccessible: “a term extension provides record companies with an incentive to digitise and market their back catalogue of old recordings”.
 
So far the evidence has been exactly the opposite. As it happens, we already have a “controlled experiment” on the effects of the 95-year terms. The United States has for some time protected all sound recordings for 95 years (the model for the EU proposal). This has not encouraged new creation or the reissue of historical recordings: a study commissioned by the Library of Congress and the Council on Library and Information Resources in 2005 showed that historical recordings have practically disappeared from the American market, as their owners do not see any commercial potential in them. (It is significant that there is no reference to this well-known document in the material supplied by the EU). Today, historical American recordings are mainly available as reissues from small European specialist companies. The proposed directive would effectively close this source.
 
The background material provided by the Commission shows a total lack of understanding of the reissue market. The only source of information which the Commission has used seems to be a piece of marketing research which shows that most reissues of “public domain” recordings cost the same as other recordings in London record shops. It is not the cost which is important, it is access.
 
One should distinguish between copyright in recordings and copyright in musical works. As the Commission notes, a record which is more than 50 years old is not fully in public domain if it contains musical works which are still protected. However, the Commission fails to mention that the so-called mechanical rights of musical compositions are administered by collecting societies, and normally anyone can (re)issue a recording of any composition against a standard fee. If you want to reissue the complete recordings of Enrico Caruso or the first recordings of Elvis Presley, you only need to pay a standard fee for the mechanical rights of any protected compositions. (In Caruso’s case, most of the recorded compositions are also in the public domain).  
 
The opposite is not true: if a recorded work is out of copyright, but the record is protected, it is often impossible to get a licence from the record company to reissue it, or to include it on a website, even if the company itself is not using it.
 
The market for “public domain” recordings can roughly be divided into two different sectors. First, there are recordings by still-famous artists which have recently become public domain. Typical examples would be Elvis Presley (early recordings) and Maria Callas. In these cases, the original record company may still keep some of the artist’s recordings available, but there may also be competing reissues from other companies, often at a lower price. Frequently the original company will only issue a selection of “greatest hits” and forget the others. Olavi Virta, the great Finnish singer recorded 600 tracks between 1939 and 1966. Only about 60 of them are on the market today.
 
For most “public domain” reissues, the original companies do not have the slightest interest in selling the recordings. As the Commission notes, the major record companies normally do not bother to publish records which sell fewer than 20,000 copies. These recordings, sometimes more than 100 years old, are usually issued for marginal audiences such as collectors of historical opera recordings, jazz, blues, and so on. The editions are may be small, as low as 500 or 1000 copies, and the producers are often hobbyists who do not have to make a living or even a profit from the reissues. The first such reissue company was William Seltsam’s International Record Collectors’ Club, founded in 1931, which issued recordings in editions of 50 copies. It is such companies which have kept the history of sound recording alive, often rescuing rare recordings long since lost by the original record companies.
 
The present Directive contains a “use-it-or-lose-it” provision which would require the original record company to reissue a record within one year from the date when it would otherwise have fallen into the public domain. Otherwise the company will lose the rights. This is good, but not sufficient, because a web release anywhere would apparently be enough to fulfil this requirement. The record company could make a recording available in a bit-reduced format for a short period in year 51, and if it does not sell in sufficient quantities, it could stay locked away for another 44 years even if it disappears from the market for several decades. In the meantime, audio formats will change, and the file bought on the web will become unusable. If it has been published in a copy-protected format, it will be illegal to break this protection. There is no requirement to register the reissue. How can anyone in the future know if a particular recording has been available somewhere two-three decades earlier, unless this information is registered somewhere?
 
Additional comments can be found in my previous blogs
 
http://blogit.yle.fi/node/2230
http://blogit.yle.fi/node/2234
 http://blogit.yle.fi/node/2240
Next blogs: digital libraries
protection of co-writers
 
Pekka Gronow is sound archivist and adjunct professor of ethnomusicology at the University of Helsinki. He is the author of numerous books and articles on the recording industry, including “An International History of the Recording Industry” (2000).
 
Suomalaisille lukijoille: tämä ja seuraavat blogikirjoitukset on poikkeuksellisesti julkaistu englanniksi aiheen kansainvälisen merkityksen vuoksi.